Reframing Protection from a Child Rights Perspective

James McDougall

National Children's & Youth Law Centre

Protecting All Children Today Conference

Brisbane, Australia Wed 25 March 2009

Established in 1993 as a community legal centre to assist children and young people in dealing with the legal system

and to promote their rights. Its policy corner stone is the United Nations Convention on the Rights of the Child.

www.lawstuff.org.au

Children and Young People

• Do not use adult-controlled mechanisms

• Have legal issues and problems

• Seek information in order to develop their own responses to problems

• Lawstuff – over 4 million hits a year

• Lawmail – between 1000 and 1500 requests for assistance a year

What do children want?

• I want to be heard – on my own terms.

• I want my view to be heard on decisions that affect me.

• If a different decision is made, I want to know why?

• I want to be safe

• I want to be treated with respect.

Barriers to Access for Children

• Whilst older children generally use the internet more comfortably, more often (and more skilfully) than adults, barriers remain.

• Culture

• Remoteness

• Language and literacy

• Disability

• Poverty

Children’s Voices

• “i seriously want to move out….whenever something happens my dad would always blame my mother, and i was hit by him ever since little, i had lots of bruises before and my friends would always ask my what happened but when i was little i didnt want anyone to think about me differently.”

• A 14 year old from NSW

Children’s Voices

• I am fifteen and have been having trouble at home my whole life. My dad has hit me. Threatened to kill me attempted to strangle me, thrown tables at me. And glass objecs witch have actually hit me and broke…. I would like to leave home. My mum sides with my dad. And i hate it. Please help me with information about living on my own i am getting very depressed living here at home.” 15 year old (SA)

Children’s Voices

• Hi.• About a month ago I called the department of community

services. I talked to them about my problem. They talked to my parents about it on the phone and it has caused so much trouble. Is there any way I can ask them to remove the report from their records? … What can I do about this? I have asked them before if they could remove the report but they said they couldn\'t.

• ---------------------------------------------------------------------------• Hi.• I am wondering if someone is bullying me or physically

hurting me (like hitting me or bashing me up) what can I do about it?

Our Existing Systems – State / Federal

• In 1997 the Australian Law Reform Commission and the Human Rights & Equal Opportunity Commission produced the landmark report “Seen and Heard: Priority for Children in the Legal Process”. At the time the Report noted ‘the consistent and persistent criticism of all care and protection systems in Australia’.

• The Report called for the development and implementation of national standards for the care and protection system. Today nearly twelve years later we still have no national standards.

Making Progress?Report of the Commission of Inquiry into Abuse of Children in

Queensland Institutions, 1999 (the ‘Forde Inquiry’); Putting the Picture Together: Inquiry into Response by Government

Agencies to Complaints of Family Violence and Child Abuse in Aboriginal Communities, Western Australia 2002 (the ‘Gordon Inquiry’);

Our Best Investment: A State Plan to Protect and Advance the Interests of Children, South Australia, 2003 (the ‘Layton Review’);

Children of Anangu Pitjantjatjara Yankunytjatjara (APY) Lands Commission of Inquiry, A Report into Sexual Abuse, South Australia 2008 (the ‘Mulligan Inquiry’);

Report of the Northern Territory Board of Inquiry into the Protection of Aboriginal Children from Sexual Abuse, 2007 (the ‘Wild Inquiry’)

The Special Commission of Inquiry into Child Protection Services in New South Wales 2008 (‘the Wood Inquiry’).

Scope and Principles of the Convention

• Civil and political rights, • Humanitarian rights • Economic, social and cultural rights• Rights to family• Rights to cultureSurvival and DevelopmentNon-discrimination / Equality of OpportunityProtection – the best interests principleDeveloping Participation

A child’s life experience

• In school (articles 28 and 29)

• In the home / with family (articles 3, 5, 18, 20, 21)

• For health + welfare (articles 6, 24 and 27)

• For development (articles 7, 18 and 31)

• For protection (articles 19, 30-34, 39)

• For participation (articles 13, 14 and 17)

Duty Bearers for the Child

• The right of families to support from the state (articles 5, 18)

• The rights of children requiring the care of the state (articles 3, 9)

• The right to family and culture (articles 7, 8, 10 and 30)

A Child Rights Based Approach1. Evaluation and identification of children’s needs.2. Evaluation and identification of causes.3. Raise awareness of needs and causes.4. Evaluate capacity of rights bearers (children and

parents) to claim and duty bearers (parents, the community and the State) to provide.

5. Develop comprehensive strategy to build capacities.6. Implement strategy - includes research, delivery of

services, education – for empowerment, awareness and legislative change.

7. Evaluate strategy against content of normative standards (and the work of human rights treaty monitoring bodies)

8. Implementation - interdisciplinary and multi-sectoral.9. Implementation - culturally sensitive and aware.10.Implementation - to require re-allocation of power and

resources.

A child rights based approach• Seeing the world through the eyes of a

child;

• Confronting marginalisation, paternalism and benevolence;

• Recognising entitlements, capacity and autonomy;

• Accepting social responsibility and burden sharing;

• Creating participatory, sustainable and effective outcomes.

A National and Coordinated Approach to Child Protection

What are the cumulative effects on a country if the child protection system fails?

Children who miss out on educational opportunities, have poorer health outcomes, have greater contact with the criminal justice system and as a consequence of suffering abuse have less of a chance to fulfil their potential. This disadvantage, if left unattended, can take its toll on a nation’s social and economic development.

UNICEF Child Protection Programme Strategy and Programming Process Report 2007

What is the Federal Government’s current stance?

“Child Protection, including for children in alternative care, is the statutory responsibility of State and Territory Governments”

“The Australian, State and Territory Governments are also working together to examine a national approach to protecting all vulnerable children. This includes developing a common descriptive framework, definitions and terminologies for child protection and early intervention.” from the draft Government Report to the United Nations Committee on the Rights of the Child – June 2008

‘Seen and Heard: Priority for Children in the Legal Process’, 1997 ALRC + HREOC

• ‘Australia’s commitments to children as a party to [the Convention on the Rights of the Child] and the consistent and persistent criticism of all care and protection systems in Australia lead the Inquiry to recommend that the Commonwealth undertake to coordinate the various care and protection systems

• The Report proposed national standards for legislation and practice (Recommendation 161) to be reviewed and evaluated in light of national and international initiatives (Recommendation 162); national research and data collection (Recommendations 163 and 166) including on the effectiveness of mandatory reporting (Recommendation 168) and conferencing models (Recommendation 169); and a National Charter for Children in Care (Recommendations 164 and 165.

• Apart from some renewed interest in the area of research, there has been no particular response to these recommendations at a national level in the years since.

Towards Best PracticeA Justice System Model is not sustainable.A Public Health Model?With comprehensive prevention and

participation strategies;With cost-benefit analysis by the Productivity

Commission;With evaluation and monitoring using a Child

Rights framework;With State / Federal cooperation or a

Federal regulatory model?

The Participation of Children

Don’t look to lawyers for best practice in supporting the participation of children.

But hold them to account if they don’t.

The inclusion of participation as a principle in legislation is not enough.

Supporting participation is the responsibility of adults.

Support the work of those with a track record – the CREATE Foundation; the Offices of Children’s Commissioners.

Indigenous Children

The significance of history in building trust.Self determination – involving communities

in building sustainable solutions.The importance of relationships with family,

community, culture and land.The United Nations Committee on the

Rights of the Child – General Comment No. 11 on Indigenous Children

http://www.crin.org/docs/GC.11_indigenous_New.pdf

Using a Child Rights Framework

• The relevance of basic survival and development rights

• Early intervention• The provision of substitute care – a right to

special protection• Stability • Periodic review• Leaving Care• Homelessness

The Need for National Policy and Coordination

• The Committee … remains concerned that there is no comprehensive policy at national level for children specifically addressing human rights issues that may impact on them. (Paragraph 11)

• The Committee … recommends that the State party develop and implement effectively a National Plan of Action for children, taking into account the Declaration and the Plan of Action “A World Fit for Children” adopted by the General Assembly special session in May 2002. This Plan should have specific goals, strategies and guaranteed resources, which would allow for an appropriate implementation of the Convention across all States and Territories. (Paragraph 12)

UN Committee on the Rights of the Child (October 2005)Concluding Observations on Australia's implementation of the

Convention - http://www2.ohchr.org/english/bodies/crc/crcs40.htm

Children as Active Participants• Children want to be healthy – what will encourage them

to develop healthy practices?• Children want to be safe from violence and abuse - how

can we provide them with safe places?• Children will seek help from those they trust – How can

we make sure that they trust the right people?• Children want to learn – what is a child-friendly learning

environment?• A child rights based approach will look beyond the laws

and regulations. • We recall the fourth point from Tobin’s plan.• Evaluate capacity of rights bearers (children and

parents) to claim and duty bearers (parents, the community and the State) to provide.

Our Role in the Participation of Children An adult can promote and facilitate effective participation by: keeping the child informed about:• what is going on;• how the process works;• what different roles people play;• what the issues and options are;• how decisions will be made;• what happens after the decision is made; and• the reasons for the decision, including, if necessary, why the child’s

views were not followed in the ultimate decision;[1]allowing the child a choice in how and whether to participate;helping the child to express their views; andenabling the type and extent of participation chosen by the child

• [1] J. Cashmore, Child Abuse & Neglect 26 (2002) 837-847, p842

A National Child Protection Framework• A national and coordinated approach to child protection which draws

on best practice, nationally and internationally;

• Built on the United Nations Convention on the Rights of the Child;

• Provides for the voices of children to be heard and for the effective participation of children;

• Provides for the voices of Indigenous children to be heard and for the effective participation of Indigenous children;

• Provides both care providers as well as young people leaving out-of-home care with sufficient support systems to afford these children and young people the opportunity to develop and participate;

• Evaluation and review of the effectiveness of mandatory reporting;

• Considers the separation of the functions of intervention and support (which should be grounded in a public health model) from the function of prosecution (which sits with a justice model).

Thanks

…to the staff and volunteers of the Centre particularly Julianne Elliott, Rebecca Dollisson, Sarah Penman, Benita Rupan, Subhaga Amarasekara, Oishee Alam and Karen Fok.…

…to the children who share their thoughts with us….

…to the Conference Hosts and Organisers….

…to you for your attention.

www.lawstuff.org.au